The term probate refers to the manner of administering the property (the estate) of a decedent by a personal representative (PR) (a/k/a the executor) under the jurisdiction of one of the Michigan probate courts. A PR is appointed by the court if they are named in the decedent’s will or in the absence of a will, an interested person (or person who has an interest of the decedent’s estate) may be appointed. Probate can determine the validity of a will, and through this process the courts and attorneys have to decide whether the decedent was of sound mind when the will was made. They also have to decide whether the current will (if there is one) is the most up to date one; whether the will was written of free will and with witnesses; whether there is any chance of the will being a forgery; and other issues relating to the validity of the will.

There are 3 steps involved in this process:

1. The PR must marshall the assets (secure, determine the values and sort through the decedent’s property)
2. The PR must pay the decedent’s bills, taxes, family allowances, and general expenses of administration)
3. Distribution of what is left to the beneficiaries under the will or if there is no will, in accordance with the Michigan laws of intestacy.

If there is no will, the probate courts will look to appoint a personal representative, and the appointed personal representative will distribute the decedent’s estate in accordance with the laws of intestacy.

When a person dies without a will, they die intestate. This means that the decedent’s estate will be distributed to his heirs under the law in accordance with the Michigan statute.

Probate is required when a decedent holds assets in his name individually at his death. Jointly-held assets, assets with a beneficiary and assets owned by a trust do not have to go through probate at the death of a decedent.

That depends on the type of probate that is necessary to transfer title to the decedent’s individually held assets. In some cases and depending upon the value of the assets that require transfer, the decedent’s family may only need to use a small estate procedure. If that is all that is required, then the fees can be relatively low. If a regular estate needs to be opened, then fees will be higher. The fees involved in probate cases include court fees, administration fees, accounting and legal fees. The actual cost will often depend upon the amount of work required e.g. the size of the estate, the time taken to settle the will etc. Generally (but not always), fees are based on a percentage of the actual estate value and are around five percent (5%) of the total estate value. If the will is invalid or contested however, the fees can be significantly higher. Sometimes a smaller estate with a significant number of beneficiaries or complex plan of distribution can be costly even if the value of the estate is small.

Probate is usually handled by the probate court in the county in which the decedent lived (as a permanent resident) at the time of death. The probate court oversees the validation of the will, the appointment of the personal representative in the absence of a will, and the disbursement of assets in accordance to the will (if there is one).

Most probates take anywhere from 9 months to 2 years. The average estate completes in about 1 year but some can be completed in as early as five months. However, if matters are contested (family members disagree), then the estate may be open much longer.

Trust Administration is the process that begins with the death of the grantor (settlor), upon acceptance by the successor trustee to serve and ends upon the final distribution of Trust assets outright to the beneficiaries. If the trust requires an ongoing administration because assets are to be held in trust for a period of years for the benefit of the beneficiaries, then the administration will continue until the assets are completely distributed to beneficiaries.

Trust Administration is similar to, but not the same as, a probate Administration. It is a systematic set of local, state, and federal rules designed to pay the obligations of the Trust, such as debts of the decedent and taxes owed, file all necessary tax returns, cooperate with the personal representative of the probate estate (if one will be appointed), value the Trust assets, and make proper distributions to the beneficiaries of the Trust or to continuing Trusts. For a detailed description of the matters to be considered and which might have to be done, see the attached pages and our Standard Employment and Fee Agreement.

That depends. If the trust was completely funded with the decedent’s assets during his or her decedent lifetime, then no probate will be required. However, if the decedent left certain assets out of the trust and did not name a beneficiary on those assets or hold them jointly with a surviving co-owner, then a probate estate may need to be opened.

The successor trustee will only control the assets held in the name of the trust. It is critical that the successor trustee not commingle the trust accounts with his or her own accounts as this would be a violation of his fiduciary duty as trustee.

The initial Trust Administration process itself is straightforward if handled competently. It may take around five to six months from beginning to end. However, other matters unrelated to the Trust Administration may cause delays. For example, the decedent’s affairs may have been left in disarray by failing to properly plan for death, or he or she may have an unusually complex estate. Beneficiaries may be dissatisfied with their inheritance or lack thereof, there may be the necessity of filing a federal estate tax return, or there could be more creditors than assets, etc. The inability to liquidate assets (i.e. real estate) can cause delays if the real estate is to be sold and the proceeds distributed to the beneficiaries. The Trust Administration process itself does not cause such delays.

It is important to seek the assistance of an attorney who focuses his or her practice on estate planning, probate and trust administration for assistance in the administration of your father’s estate. You should bring the following information to that meeting:

1. A list of all of your father’s assets, how they were titled, whether they had a named beneficiary and their date of death value. (Please bring copies of bank statements, brokerage statements, life insurance policies, deeds for real property, information regarding business interests and the like)
2. All of your father’s estate planning documents (the original Last Will and Testament, any Trust Agreement as well as the most recent Amendments and/or Codicils)
3. A copy of all of your father’s bills as well as information about any other debts he may have had.
4. Provide your father’s domicile at death.
5. A list of all interested persons (these would be the person’s who have an interest in the administration of your father’s affairs such as, his spouse and all children) with their addresses, dates of birth and social security numbers.

Yes, but what you will need to do will depend upon the type of estate plan that you and your spouse implemented prior to his or her death. For example, if you had trusts that addressed estate tax planning, then there may be some steps that you will be required to take in order to minimize estate taxes. You should consult with an attorney who specializes in estate planning, probate and trust administration to advise you in this instance. If estate taxes do not apply to you, then there may still be other tasks in which you will have to engage as trustee. For example, if your spouse held assets individually at his death, then a probate estate may need to be opened to transfer these assets to the trust. Finally, you should go over your own estate plan in an effort to avoid probate or estate tax at your death. You should also review your plan to determine whether you wish to make any changes in your fiduciaries or plan of distribution. Your estate plan was based on the family, financial and tax situations envisioned at the time it was prepared. This plan should now be analyzed in light of current conditions, as there may be opportunities to reduce taxes or optimize other personal planning strategies on an after-death basis. As a result, these situations should be carefully reviewed with legal counsel so that you may make informed decisions.